Hewitt v. Spokane, P. & S. Ry. Co.

• Decision Date: 20 May 1965
• Docket Number: No. 37379,37379
• Citation: 402 P.2d 334,66 Wn.2d 285
• Court: Washington Supreme Court
• Parties: Walter V. HEWITT, Respondent, v. SPOKANE, PORTLAND & SEATTLE RAILWAY COMPANY, a corporation, Appellant.

Page 285

66 Wn.2d 285

402 P.2d 334

Walter V. HEWITT, Respondent, v. SPOKANE, PORTLAND & SEATTLE RAILWAY COMPANY, a corporation, Appellant.

No. 37379.

Supreme Court of Washington, En Banc.

May 20, 1965.

Robert J. Salvesen, Stevenson, Rockwood, Davies, Biggs, Strayer & Stoel, Cleveland C. Cory, Don H. Marmaduke, Portland, for appellant.

Robinson, Landerholm, Memovich & Lansverk, Vancouver, for respondent.

HALE, Judge.

The night was black, and a heavy rain fell as Walter V. Hewitt and Jerry Shebley left the tavern in Lyle to drive out of town with Lester Roth in his 1953 GMC pickup truck. They intended to take Hewitt over to Bingen where he could arrange for a ride to work next day, and on the way back were to tip over Jim Pimley's backyard privy as a sort of Halloween prank, They failed in both missions for on the way out of town on State primary highway No. 830 they rammed into a freight train as it coasted quietly through the crossing at the western edge of Lyle.

Hewitt, a guest passenger in the pickup, brings this action against the Spokane, Portland and Seattle Railway Company to recover for serious injuries. From a judgment of $19,240.95 in his favor after trial to the court without a jury, the defendant railroad appeals, assigning error to denial of its motion for a directed verdict and separately to five findings of fact. Our study of the record shows that all assignments combine to raise one decisive question: Was there substantial evidence to support the court's finding that the railroad crossing was extrahazardous or constituted a trap? If not, the cause must be reversed and dismissed; if so, it must be affirmed.

When the findings of the trial court are supported by substantial evidence, this court will not disturb them on appeal. Adler v. University Boat Mart, Inc., 63 Wash.2d 334, 387 P.2d 509. A mere scintilla of evidence will not support the findings (Charlton v. Baker, 61 Wash.2d 369, 378 P.2d 432); it requires believable evidence of a kind and quantity that will persuade an unprejudiced thinking mind of the existence of the fact to which the evidence is directed. Wharton v. Department of Labor & Industries, 61 Wash.2d 286, 378 P.2d 290; Bland v. Mentor, 63 Wash.2d 150, 385 P.2d 727.

Abundant evidence depicts the crossing and tells us about the accident on this Halloween night of October 31, 1960. Nearly everyone connected with this case knew State primary highway No. 830 to be an important highway, running westerly out of Lyle to cross the railroad track at the edge of town and carrying substantial traffic at all hours of the day and night. For a considerable distance east of the crossing, the highway is straight and level, and as one drives west upon it he encounters but two warnings of the crossing: a circular disc sign on the right of the highway about 500 feet east of the crossing and the typical crossarm or crossbuck wooden sign near the track. These two devices have little bearing on the case because the three occupants of the pickup had lived in the vicinity for years and well knew the crossing. These signs warned of the tracks but not of the presence of a train. Posted speed limit on No. 830 for traffic approaching the crossing from the west was 35 miles per hour.

Lack of illumination creates the main dilemma. A solitary street light 80 feet from the crossing provided the only artificial light at the crossing. Hewitt says that the blackness of the night combined with the reflected light on the raindrops, interacting with the pickup's headlights, obscured rather than illumined the crossing; and that, because of this diffused glow of light, one could not see the crossing until completely beyond the street light. He says that he first saw the freight train after the truck passed through this glow of light by observing the white letters on the boxcars and shouted a warning when they were from 20 to 25 feet of the train.

Consisting of an engine, 15 box and chip cars, a gondola car and a caboose, the train coasted down a slight grade through the crossing, the dark color of the cars blending into the blackness of the night. Only the engine and the caboose, separated by 16 cars over 40 feet each in length, not including the couplings between, carried lights. Heeding the warning from Hewitt and at once seeing the cars, Roth swerved the truck but hit the 9th and 10th cars, each being several hundred feet behind the engine and ahead of the caboose.

As to the infrequency and time intervals that the railroad moved its trains through the crossing, the court found that the crossing was 'rarely used except by the Goldendale freight train which made a trip up and back each day except Sunday,' and that 'The train did not return to Lyle from the north on any set schedule; its return time varied between about 4 PM and 2 AM.' On the issue of contributory negligence, the trial court, from substantial evidence, made specific findings pertaining to Roth, the driver, and Hewitt, the passenger. It found that Hewitt, being a guest passenger and under the circumstances having no duty to maintain a lookout, did, nevertheless, look intently ahead ¹ exercising greater care than reasonable prudence required of him, and that Lester Roth, looking attentively ahead, drove the pickup with reasonable care under the conditions then prevailing. ²

From an abundance of supporting evidence, the trial court found that heavy rain and patches of ground fog seriously restricted visibility; that the light from Roth's pickup and the glow from the lone street light combined and interacted in the rain and darkness to obscure rather than illumine the crossing. It found that the crossing became extrahazardous and a trap to persons traveling on highway No. 830 'especially on dark and rainy nights,' and that the railroad knew, or should have known, of this extraordinary danger. ³

Then, on the question of the railroad's negligence, the trial court found that 'The defendant railroad failed to provide adequate warning devices * * * for all types of weather. The defendant railroad failed in its duty to effect the installation of adequate signal lights or devices to convey an alarm or warning * * * when a train was approaching or occupying the crossing,' and that this negligence proximately caused the accident.

Appellant relies on Ullrich v. Columbia & Cowlitz R. Co., 189 Wash. 668, 66 P.2d 853, in which we reversed a judgment for the plaintiff where an automobile collided with a logging train passing through a crossing on a rainy night. There, as here, the highway was level for several hundred feet preceding the crossing and 'There was nothing whatever to obstruct the driver's view of the crossing except the natural darkness and the rain.' But despite other marked similarities in the two situations, we find several equally striking differences.

In Ullrich, the plaintiff drove the car; here plaintiff, a guest passenger, had no control whatever over the vehicle. There the court looked to the manner of operating the train in examining the question of negligence; here we are concerned with the manner of maintaining the crossing. We said, in Ullrich:

'If negligence is to be found, it must arise out of the operation of a train * * * and it is difficult, indeed, to understand how any one could reasonably anticipate that harm would come from operating such a train at a modest rate of speed over a Well-lighted crossing.' (Italics ours.)

Thus we found that a 300-watt electric floodlight placed at a height of about 20 feet above the northeast corner of the crossing and being a 'standard light for the purpose for which it was intended' established as a matter of law that the crossing was well lighted under the circumstances.

Involving a well-lighted crossing, Ullrich came within the rule that, when a train actually occupies a crossing, it supersedes all other warnings and gives notice by its actual presence. Reines v. Chicago, Milwaukee, St. Paul & Rac. R. Co., 195 Wash. 146, 80 P.2d 406; Webb v. Oregon-Washington R. & Nav. Co., 195 Wash. 155, 80 P.2d 409. Each case has distinguishing features. For example, in Webb, we found proximate cause wanting when it was shown that the freight cars had been left standing in the crossing longer than the time allowed by city ordinance and also observed that the 'night was dark and very cold, but the air was clear.'

But in applying the rule that a train while in the crossing supersedes all other warnings, it being a warning per se as in Schofield v. Northern Pac. R. Co., 4 Wash.2d 512, 104 P.2d 324, we additionally noted a persuasive exception to it. We said that, where the situation is unusual or extrahazardous, or constitutes a situation in the nature of a trap, the ultimate decision becomes one of fact. Hendrickson v. Union Pac. R. Co., 17 Wash.2d 548, 136 P.2d 438, 161 A.L.R. 96; Cox v. Polson Logging Co., 18 Wash.2d 49, 138 P.2d 169.

All railroad crossings are dangerous--extremely so--but some are far more dangerous than others. Recognition of this truism brought forth the exception that, if unusual or extraordinarily dangerous circumstances prevail, the presence of the train in the crossing is not alone such a warning as to constitute reasonable care and prudence by the railroad under the circumstances. We recognized the exception as equal in status to its parent rule when we said:

'* * * Basically, appellant contends that there is no substantial evidence from which the jury might have concluded that circumstances existed relative to the crossing at the time of the accident which constituted a trap, amounting to an exception to the general rule that the presence of the train was sufficient warning to respondent. If we were members of the jury, we might, by weighing the evidence, reach the conclusion that no trap existed and that respondent was not deceived by the darkness, the black gondola car, the absence of lights or flares, or by the topography of the crossing and the highway...